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eirenicon comments on Open Thread: November 2009 - Less Wrong
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And you don't see any issues with this? That would seem to be far worse than the English rule/losers-pay.
I pick a random rich target, find 50 street bums, and have them file suits; the bums can't contribute more than a few flea infested dollars, so my target pays for each of the 50 suits brought against him. If he contributes only a little, then both sides' lawyers will be the crappiest & cheapest ones around, and the suit will be a diceroll; so my hobos will win some cases, reaping millions, and giving most of it to me per our agreement. If he contributes a lot, then we'll both be able to afford high-powered lawyers, and the suit will be... a diceroll again. But let's say better lawyers win the case for my target in all 50 cases; now he's impoverished by the thousands of billable hours (although I do get nothing).
I go to my next rich target and say, sure would be a shame if those 50 hobos you ran over the other day were to all sue you...
If the defending party is only required to match the litigating party's contribution, the suits will never proceed because the litigating bums can't afford to pay for a single hour of a lawyer's time. And while I don't know if this is true, it makes sense that funding the bums yourself would be illegal.
Well, the original said you could only not fund the legal defense; I don't see anything there stopping you from putting the bums up in a hotel or something during the lawsuits.
But even if defendants were required to spend the same as the plaintiff, we still run into the issue I already mentioned: So now I simply need to put up 5 or 10k for each bum, guaranteeing me a very crappy legal team but also guaranteeing my target a very crappy legal team.
The less competent the 2 lawyers are, the more the case becomes a role of the dice. (Imagine taking it down to the extreme where the lawyers are so stupid or incompetent they are replaceable by random number generators.) The most unpredictable chess game in the world is between the 2 rankest amateurs, not the current World Champion and #2.
But maybe your frivolous win-rate remains the same regardless of whether you put in 10k or a few million. There's still a problem: people already use frivolous lawsuits as weapons: forcing discovery, intrusive subpoenas, the sheer hassle, and so on. Those people, and many more, would regard this as a massive enhancement of lawsuits as a weapon.
You have an enemy? File a lawsuit, put in 20k, say, and now you can tell your crappy lawyer to spend an hour on it every so often just to keep it kicking. If your target blows his allotted 20k trying to get the lawsuit ended despite your delaying & harassing tactics, now you can sic your lawyer on the undefended target; if he measures out his budget to avoid this, then he has given into suffering this death of a thousand cuts. And if he goes without? As they say, someone who represents himself in court has a fool for a client....
Well, a lot of what you're pointing out here is the result of other systemic problems that need other systemic fixes. Judges may not be fast enough to toss out foolish complaints. One might need a two-tier system whereby cheap lawyers and reasonably sane judges could quickly toss almost all the lawsuits, and any that make it past the first bar can get more expensive lawyers. One may need a basic cost of a dismissed suit to the litigant, or some higher degree of loser-pays.
Lawsuits are already weapons. This isn't obviously a massive enhancement. At most, it increases costs by a factor of 2 for rich defendants, while greatly improving (if it works as planned!) the position of poor defendants.
OK. So the English rule is a weakened version of this; we should expect to see great improvements from it, since between it and contingency-fees and class-actions, poor defendants have much greater financial wherewithal than their poverty would allow. Do we see great improvements? If we don't, why would we expect your full-strength treatment to work?
And if we can't justify it on any empirical grounds, why on earth would you put it forward on theoretical grounds when a minute's thought shows multiple issues with it, to say nothing of how one would actually enforce equitable spending? (The issue would seem to be as difficult & tricky as enforcing campaign finance laws...) And if I, an utter layman to the law, can come up with flaws you seem to acknowledge as real, how many ways could a legal eagle come up with to abuse it?
That's pretty lame. Reminds me of Yvain's "Solutions to Political Problems As Counterfactuals":